This essay discusses the importance of dispute resolution methods that ensure settlement of disputes in a cost-effective and timely manner. It also highlights the strengths and weaknesses of alternate dispute resolution methods such as arbitration, mediation, and negotiation.
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Running head: STRENGTH AND WEAKNESSES OF DISPUTE RESOLUTION Strengths and Weaknesses of Dispute Resolution Name of the Student Name of the University Author Note
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1STRENGTH AND WEAKNESSES OF DISPUTE RESOLUTION Dispute resolution purports to establish the right of any party to submit enabling the party to consider the claims based on its validity, possible outcome and contractual terms. The dispute resolution method has been introduced to resolve various disputes that arise between the parties as an alternative to court procedures. The concept of alternate dispute resolution facilitates settlement negotiations wherein the disputed parties shall be able to negotiate with one another outside the court through the various arbitration methods (Avery & Range, 2014). The concept of alternate dispute resolution has been gaining momentum particularly in the contemporary era and it is acknowledged in the commercial context along with in the field of law. The essay shall discuss about the importance of the dispute resolution methods that not only ensure settlement of disputes in a cost-effective and timely manner but also provide assistance to the courts. The alternate dispute resolution methods usually reduce the burden of the courts by settling disputes without requiring the parties to undergo complicate and time-consuming as well as expensive legal proceedings. The primary objective of ADR is to address the disputes that arise between the disputed parties using methods that are less time-consuming and cost-effective while fostering long-term relationships. Unlike the dispute resolution methods, the courts procedures are not only time consuming but also involves huge expenses. The importance of the alternate dispute solution methods is evident from the fact that it resolves issues providing effective remedy based on the facts of the case (Blake, Browne & Sime, 2016). Since the methods used as alternate dispute methodsarepracticesthataddressestheissuesbeforethedisputantpartiesseeklegal proceedings to settle the disputes, these alternate methods are also known as non-judicial procedures.
2STRENGTH AND WEAKNESSES OF DISPUTE RESOLUTION Although several distinct dispute resolution processes exists that are used to resolve the concerned disputeswithout necessarilyrequiring a third-party decision-makersuch asan adjudicator to settle such disputes, dispute resolution processes like mediation, arbitration and negotiation involves the disputant parties to resolve the disputes. By using either of these alternate dispute resolution methods, the parties play a significant role in addressing the issues, thus, to come to a settlement with respect to the despite. According toGoldberget al., (2014), these three procedures enable the parties to exercise varied degree of control over the concerned disputes and reach to a settlement. Arbitration is a process, which involves mutual agreement between the disputed parties regarding appointment of the arbitrator who shall determine the matter in dispute. This alternate dispute resolution method is known as a quasi-judicial procedure. This is because this alternate dispute resolution process ensures that the parties will submit their dispute to the impartial judgment of the mutually selected arbitrator whose decision shall be binding upon them. Arbitration is more of a formal process than the other dispute resolution processes like negotiation and conciliation and is advantageous for several reasons.Singer (2018)states that an arbitrator must possess expert knowledge necessary to settle the disputes. Further, arbitration process is flexible and the decision made by the arbitrator is final and is binding upon the disputant party. The arbitration process is a private matter and is a cost-effective as well as consumes less money. Mediation is an Alternate resolution method where any impartial third party commonly known as the mediator who facilitates a voluntary and a mutually settlement. A mediator is responsible for recognizing issues discuss about the consequences of reaching deadline, thus, encouraging the disputant parties to adjust with one another’s interest. While resorting to
3STRENGTH AND WEAKNESSES OF DISPUTE RESOLUTION mediation, it refers to a peaceful dispute resolution tool that harmonizes with the existing court system as well as with the arbitration practice. Mediation as an alternate dispute resolution method has similar traits as that of the arbitration.Mediation advocates prompt hearing and ensure fair outcomes. Mediation is a method that assists in reducing congestion in court and a creative alternative to the court procedures (Roberts, 2016). It is a successful dispute resolution method as it endows the parties with an opportunity to express their own anxieties and interests that are related to the dispute. Further, this process provides mutual satisfactory outcome by reducing solutions that are individually adjusted to fulfill the needs of the particular parties. Unlike the arbitrators, the mediators do not judge but acts impartially while carrying out negotiation techniques, thus, assisting the parties to reach mutually satisfied solutions. Negotiation is used as the most common dispute resolution method that is used to settle disagreements between the disputant parties. It refers to the communication that is held between the disputant parties to resolve the concerned issues. Negotiation also enables the disputant parties to take active part in the negotiation with respect to the matter in dispute. The advantage of negotiation as an alternate dispute method is that it forms a contract, which is legally enforceable. Another advantage is that it is voluntary in nature and is not expensive as legal proceedings (Lee, Yiu, & Cheung, 2016). The negotiation process either commences during any stage of conflict before seeking legal proceedings or while a legal proceeding is in progress or at the time of conclusion of a trial even after or prior filing of an appeal. Negotiation as an alternate dispute method differs from the other ADR methods like the conciliation, mediation as in case of negotiation, no independent third party shall negotiate on behalf of the disputed parties, and the disputant parties themselves would negotiate on behalf of the dispute party who shall represent the interests of the concerned parties (Kramer, 2016).
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4STRENGTH AND WEAKNESSES OF DISPUTE RESOLUTION The advantages of resorting to Alternate dispute resolution methods are numerous as it is cost-effective and less time consuming, as already mentioned earlier. The dispute resolution methods reduce the expenses that are otherwise incurred by disputant parties in engaging attorneys as well as witnesses (Hyman, 2015). The court proceedings involve an intricate procedure, which consumes significant time ranging from five to fifteen years at times. On the contrary, the above three mentioned dispute resolution methods ensures faster outcomes and within less time. Secondly, the parties resorting to alternate dispute method have the opportunity to select the arbitrator or mediator of their choice based on their competency to resolve the settlements. Further, the arbitrators is not required to be an attorney that is beneficial in a way asit will enable him to concentrate more on the matter in issue other than the technical procedural rules. In case of litigation, the parties are not permitted to select the jury due to which the litigants require expert witnesses to explain the court procedures to the witnesses (Pryor, 2014). Thirdly, the Alternate dispute resolution processes ensure that the information shared or exchanged between the parties and the decision-maker remains confidential. On the other hand, majority of the court trials and related proceedings do not ensure such privacy as the court proceedings are likely to release the information related to court proceedings to the media and the public unlike the alternate dispute processes (Ryan, 2018). Unlike the ADR procedures, the court proceedings do not enable the disputant parties to take part in the decision-making process. As per the ADR procedures, the disputant parties take part in the outcome of results resulting in mutually satisfied outcomes.
5STRENGTH AND WEAKNESSES OF DISPUTE RESOLUTION The ADR processes have certain deficiencies that act as impediments while settling the disputes. Firstly, since the ADR processes require the disputant parties to select the arbitrator, there might not be mutual agreement between the parties regarding the selection of the impartial decision-maker. Secondly, other than arbitration, the other processes are not legally binding upon the disputant parties, which may give rise to uncertainty with respect to the results. Thirdly, though the ADR processes might be less expensive compared to the court proceedings, the hiring of professional or trained arbitrators may be incur some expenses as well (Menkel-Meadow, 2015). From the above discussion, it can be inferred that despite deficiencies that prevail surrounding the various alternate dispute resolution, the arbitration dispute process ensures a cost-effective and less time-consuming method to settle the dispute. The alternate dispute resolution processes are not only beneficial to the disputant parties but are also effective in reducing the increased number of cases that are being dealt by the courts. This is one way that disputes are being settled prior to trials which has eventually assisted the courts in lessening its burden, which, in turn, has enabled the courts to deal with trials that involve other matters. The above three arbitration settlement methods such as arbitration, negotiation and mediation are used to enable the disputant parties to design their own settlements that might involve interests of the disputant parties which is an advantage that is not available in case of court proceedings. The most important significance that is associated with ADR processes is that the disputant parties gain more power because they themselves will be involved in the settlement of disputes, which will enable them to express their interests and mutually come to an agreement.
6STRENGTH AND WEAKNESSES OF DISPUTE RESOLUTION References Avery, G. A., & Range, J. J. (2014). Alternative Dispute Resolution.ABA Recent Dev. Pub. Util. Comm. & Transp. Indus., 1. Blake, S. H., Browne, J., & Sime, S. (2016).A practical approach to alternative dispute resolution. Oxford University Press. Goldberg, S. B., Sander, F. E., Rogers, N. H., & Cole, S. R. (2014).Dispute resolution: Negotiation, mediation and other processes. Wolters Kluwer Law & Business. Hyman, J. (2015). Alternative Dispute Resolution. Kramer, H. S. (2016).Alternative Dispute Resolution in the Work Place. Law Journal Press. Lee, C. K., Yiu, T. W., & Cheung, S. O. (2016). Selection and use of alternative dispute resolution (ADR) in construction projects—Past and future research.International Journal of Project Management,34(3), 494-507. Menkel-Meadow, C. (2015). Alternative and Appropriate Dispute Resolution in Context Formal, Informal, and Semiformal Legal Processes. Pryor, W. (2014). Alternative Dispute Resolution.SMU Annual Texas Survey,1(1), 1. Roberts, M. (2016).Mediation in family disputes: principles of practice. Routledge. Ryan, P. (2018). Alternative dispute resolution: Court-referred ADR: Judicial perceptions.LSJ: Law Society of NSW Journal, (42), 90.
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7STRENGTH AND WEAKNESSES OF DISPUTE RESOLUTION Singer, L. (2018).Settling disputes: Conflict resolution in business, families, and the legal system. Routledge.